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FOR PUBLICATION
ATTORNEYS FOR APPELLANT: DARLENE J. BRISCOE MARIANNE J. CONRAD JOHN E. BRENGLE Indiana Legal Services, Inc. New Albany, Indiana ATTORNEY FOR APPELLEE: STEVEN SAMS Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
VALERIE COX, Appellant-Petitioner, vs. MICHAEL COX, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 15A04-0410-CV-561

APPEAL FROM THE DEARBORN CIRCUIT COURT The Honorable James D. Humphrey, Judge Cause No. 15C01-0008-DR-191

September 8, 2005

OPINION - FOR PUBLICATION

SHARPNACK, Judge

Valerie Cox appeals the trial court's grant of a petition for modification of a dissolution decree filed by her former husband, Michael Cox. Valerie raises two issues, which we consolidate and restate as whether the trial court's modification of the terms of the dissolution decree pertaining to maintenance was clearly erroneous. We reverse and remand. The relevant facts follow. On October 18, 2000, the trial court entered a Summary Decree of Dissolution and made the parties' property settlement agreement part of the decree by reference. The property settlement agreement divided the parties' assets and debts, resolved issues concerning custody and child support, and provided: ***** V. SPOUSAL MAINTENANCE Michael Cox shall pay to Valerie Cox the sum of $1,938 per month for spousal maintenance regardless of her cohabitation with another person. Valerie Cox is also retaining a stock interest in Cox Investments. In the event that Cox Investments pays a dividend, the following year the spousal support will be reduced by one-half of the interest of the dividend and it will be reduced by equal monthly installments of the amount during the year. Said maintenance shall continue for the remainder of Valerie's life. ***** XV. WAIVER AND MODIFICATION No modification or waiver of any of the terms hereof shall be valid unless in writing and signed by both the parties. No waiver of any breach hereof or default hereunder shall be deemed a waiver of any subsequent breach or default of the same or similar nature. Appellant's Appendix at 12, 14. On September 20, 2002, Michael filed a petition to modify the dissolution decree. In the petition, Michael alleged that he lost his job in December 2001, that he had filed 2

for bankruptcy, and that he could no longer afford to pay the maintenance. Michael requested that the trial court modify the dissolution decree to terminate his obligation to pay maintenance. Valerie objected to the petition to modify the decree and filed a motion to dismiss, and the trial court held a hearing at which the parties presented arguments but no evidence. Michael argued that he should be excused from paying the maintenance because of "impossibility of performance." Transcript at 12. Valerie argued that, under Voigt v. Voigt, 670 N.E.2d 1271 (Ind. 1996), the trial court did not have authority to modify the maintenance provision. The trial court entered the following findings of fact and conclusions thereon: ***** 1. The marriage of the parties was dissolved by summary decree of dissolution dated October 19, 2000; such decree approved the parties' agreement regarding division of marital property, assets, debts, custody and child support filed October 18, 2000. At issue is Paragraph 5 of the October 18, 2000, agreement which provides: "Michael Cox shall pay to Valerie Cox the sum of One Thousand Nine Hundred Thirty-eight Dollars ($1,938) per month for spousal maintenance regardless of her cohabitation with another person . . . . Said maintenance shall continue for the remainder of Valerie's life." I.C. 31-15-7-2 sets forth circumstances under which a court may award maintenance, as follows: a. Physical or mental incapacity affecting the ability of the incapacitated spouse to support himself or herself; b. Insufficient property apportioned to a spouse to provide for the spouse's needs and the spouse is the custodian of a child with physical or mental incapacity requiring the custodian to forego employment; c. Rehabilitative maintenance, not to exceed three years. 3

2.

3.

4.

The Court notes that [Michael] was not represented by counsel in the dissolution of marriage proceedings.

From the foregoing, the Court concludes that the spousal maintenance provision of the October 18, 2000, agreement, not being in compliance with I.C. 31-15-7-2, is voidable, and [Michael's] petition to modify should be granted, and [Michael] is hereby granted relief from the requirement of paying [Valerie] the sum of One Thousand Nine Hundred Thirty-eight Dollars per month for life. Appellant's Appendix at 6-7. Valerie filed a motion to correct error and alleged that the trial court's order violated Voigt, but the trial court denied Valerie's motion to correct error. The sole issue is whether the trial court's modification of the terms of the dissolution decree pertaining to maintenance was clearly erroneous. It appears from the record presented to us that the trial court entered sua sponte findings of fact and conclusions thereon. Sua sponte findings control only as to the issues they cover, and a general judgment will control as to the issues upon which there are no findings. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). We will affirm a general judgment entered with findings if it can be sustained on any legal theory supported by the evidence. Id. When a court has made special findings of fact, we review sufficiency of the evidence using a two-step process. Id. First, we must determine whether the evidence supports the trial court's findings of fact. Id. Second, we must determine whether those findings of fact support the trial court's conclusions of law. Id. Findings will only be set aside if they are clearly erroneous. Id. "Findings are clearly erroneous only when the record contains no facts to support them either directly 4

or by inference." Id. A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. Id. In order to determine that a finding or conclusion is clearly erroneous, an appellate court's review of the evidence must leave it with the firm conviction that a mistake has been made. Id. Valerie argues that the trial court's judgment is clearly erroneous because it failed to follow the Indiana Supreme Court's opinion in Voigt, 670 N.E.2d at 1272. In Voigt, the parties negotiated a settlement agreement, which included a provision requiring the husband to pay $400.00 per week to the wife as maintenance until she died, remarried, or reached age 65. Id. The settlement agreement also provided that "[a] modification . . . of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement." Id. The trial court then

incorporated the settlement agreement into the dissolution decree. Id. at 1273. Despite the agreement, the husband failed to pay the maintenance and, a few months later, petitioned to modify the maintenance provision. Id. The husband argued that a "material change" in his "financial circumstances" made it "impossible and unreasonable" for him to make the promised payments. Id. The wife filed a motion to dismiss, which the trial court granted. Id. On appeal, the Indiana Supreme Court distinguished between court-imposed maintenance and maintenance agreements. The Court noted that in ordering

maintenance, a trial court "is restricted to three, quite limited options." Id. at 1276. First, it may grant incapacity maintenance if it "finds a spouse to be physically or mentally incapacitated to the extent that the ability of the 5

incapacitated spouse to support himself is materially affected." Ind. Code Ann.

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